For several years, the World Intellectual Property Organization (WIPO) has been considering a treaty that would provide copyright-like rights (related rights) to broadcast organizations. Such a treaty already exists – the 1961 Rome Convention – which the U.S. never joined.

Essentially, the new treaty would provide broadcasters with certain rights with respect to their transmissions, separate and apart from any copyrights they or others may or may not have in the content of their transmissions. These rights in signals include the right of reproduction, the right of retransmission, and the right of communication to the public.

The main difference between the WIPO treaty and the Rome Convention is that the WIPO treaty provides 50 years of protection from when the broadcast occurred, while the Rome Convention provides only 20 years of protection. Additionally, the WIPO treaty would require signatories to prohibit the circumvention of technological measures used by broadcast organizations to protect the broadcasts. (Libraries continue to be concerned about the issue of technological locks, circumvention of which is prohibited under the Digital Millennium Copyright Act of 1998. We have requested
certain exceptions to the prohibition against circumvention for libraries and for other users of copyrighted materials.)

What is the status of the proposed treaty?

WIPO’s Standing Committee on Copyright and Related Rights (SCRR) decided in May 2006 that the committee would consider, at its September 2006 meeting, a
“Revised Draft Basic Proposal” [pdf] for a treaty on the protection of the rights of broadcasting organizations. The goal of the meeting to be held September 11-13 in Geneva is to agree and finalize the draft text “in order to enable the 2006 General Assembly to recommend the convening of a Diplomatic Conference at an appropriate date in 2007.”

At its May 2006 meeting, the Standing Committee also decided that the draft Basic Proposal would not include provisions relating to “webcasting,” an element of the proposed treaty that has become quite controversial. Nonetheless, the SCRR eventually will consider a revised proposal on the protection of webcasting (including simulcasting), albeit at a later date. (See below for more about the webcasting issue.)

Why is a treaty considered necessary or desirable?

Broadcasters make several arguments as to why they need protection. First, if an entity is retransmitting a broadcaster’s signal, the broadcaster wants to be able to sue that entity, rather than rely on all the copyright owners of the individual programs. For example, if a Canadian company in Windsor is retransmitting the various Law & Order series broadcast by the NBC affiliate in Detroit, the affiliate wants the ability to sue the Canadian company directly, rather than have to convince the copyright owner of Law & Order to sue the Canadian company. Indeed, the owner of Law & Order might not have an economic incentive to sue, since it has already been paid for broadcast rights in both Detroit and Windsor.

Second, the simultaneous fixation rule of U.S. copyright law, 17 U.S.C. Â§ 411(b), does not exist in many countries. The U.S. Copyright Act provides that the transmission of a live event can receive copyright protection if it is fixed – recorded – at the same time that it is transmitted. Thus, Fox receives copyright protection for the live broadcast of American Idol because it simultaneously tapes the broadcast. But in countries without the simultaneous fixation rule, broadcasters cannot rely on copyright to protect broadcasts of live events.

Broadcasters received this sort of protection under the Rome Convention, and they have provided no evidence that the Rome Convention is not working adequately, nor economic justification for extending the term of protection by 30 years.

Would the proposed treaty protection be limited in any way, as copyright law usually provides?

The draft treaty imposes general obligations on signatories that must be implemented by national law. Article 17 of the treaty states that contracting parties may “provide for the same kinds of limitations or exceptions with regard to the protection of broadcasting organizations as they provide for, in their national legislation, in connection with the protection of copyrights in literary and artistic works, and the protection of related rights.”

Article 17 of the draft further provides that contracting parties “shall confine any limitation of or exception to rights provided for in this Treaty to certain special cases which do not conflict with a normal exploitation of the broadcast and do not unreasonably prejudice the legitimate interests of the broadcasting organization.” This is the three-part test that appears in the Berne Convention, GATT-TRIPs, and the WIPO Copyright Treaty.

For works still covered by copyright, the treaty will impose an additional layer of protection. But countries will be free to provide the same exceptions to the broadcast right as apply to copyright. If WIPO adopts the treaty, and the U.S. decides to implement it, a user’s ability to make fair uses of copyrighted broadcast content will diminish if the implementing legislation does not include appropriate exceptions.

The treaty will also impose a layer of protection of public domain works not covered by copyright. Once again, countries can provide very broad exceptions from the broadcast right with respect to public domain works. The impact of the treaty on the public domain will turn on the exceptions contained in the implementing legislation.

What is the potential impact on U.S. libraries?

U.S. libraries make limited but not insignificant uses of broadcast materials, consistent with exceptions and limitations in the Copyright Act. As noted above, if the U.S. joined the treaty and Congress implemented its provisions without appropriate exceptions, then these uses might become unlawful. Libraries, therefore, would have to fight for exceptions in the domestic implementation. Libraries might probably would be joined by copyright owners, who would demand exceptions as a matter of principle; they would object to broadcasters receiving broader protection than they do.

In the event that Congress were willing to provide broadcasters with broad rights with respect to their broadcast of public domain works, libraries would be affected only with respect to public domain works that are not available from any source other than the broadcaster — a very small universe. Nonetheless, we must be concerned about the creation of new copyright-like rights that could further diminish the availability of public domain information and compilations of data.

What are the issues regarding “webcasting”?

U.S. webcasters seek legal parity with regular broadcasters. Accordingly, they have taken the position that they should receive whatever rights broadcasters receive under the treaty. Although the U.S. delegation supports this position, many other countries have rejected it. As noted above, webcasting is currently not part of the draft treaty. Rather, it is being considered along a separate track. If progress is made, webcasting provisions could be merged with the main treaty, or could form a separate protocol that signatories to the broadcast treaty would not have to join.

Some have argued that the definition of webcasting would encompass all web pages. The definition and explanatory material in the
previous draft [pdf] of the WIPO proposed treaty did not appear to support this position. Webcasting was defined as “the making accessible to the public of transmissions of sounds or of images or of images and sounds or of representations thereof, by wire or wireless means over a computer network at substantially the same time.”

This last clause, “at substantially the same time,” was intended to encompass only situations where content is transmitted to the public via the Internet at a specific time, rather than posting content on a website which can then be accessed by different users at different times. According to the explanatory comments, “[t]he elements ‘to the public’ and ‘at substantially the same time’ serve to limit the definition to accessibility of real-time streaming that may be received by several receivers at the same time. The receiver may log in to the program flow at a given point of time and receive what follows but cannot influence the program flow otherwise.”

The U.S. Patent and Trademark Office, which supports expanding the scope of the treaty to include webcasters, recently made a submission to the WIPO Standing Committee on Copyright and Related Rights “to clarify the meaning and scope of the protection for organizations which transmit signals over computer networks in the same manner as broadcasters and cablecasters.” The USPTO proposes a
definition of “netcasting” [pdf] that it says is intended to be limited to transmissions over computer networks “which are delivered to the public in a format similar to broadcasting or cablecasting.” The proposal states: “By its terms, ‘netcasting’ does not include merely providing access to audio or video content that is not pre-recorded for purposes of transmission via broadcast, cablecast or netcast.”

As for limitations and exceptions (see above), the webcasting provisions so far have been narrowly drafted and do not require countries to provide expansive rights to all website operators, contrary to what some have suggested. To be sure, some countries might chose to grant such rights to website operators, but this result is not mandated by the treaty, and is highly unlikely in the U.S. Libraries probably make very little use of webcast materials. This may change in the future as bandwidth increases, but webcasting provisions are likely to be subject to the same exceptions and limitations as the rights provided to broadcasters.

There is no compelling public policy reason for the broadcast treaty, given the existence of the Rome Convention and the absence of any evidence of harm suffered by broadcasters. The U.S. should not support adoption of this treaty by WIPO until a compelling case is made for its existence. If WIPO does adopt the treaty and the U.S. signs it, Congress should ensure that the implementing legislation contains all the exceptions and limitations present in the Copyright Act, and that the broadcast right not apply to public domain material.

In October 2005, the LCA sent a
letter to the leadership [pdf] of the Congressional subcommittees with jurisdiction over intellectual property, requesting that hearings be held concerning the negotiating position of the U.S. government with respect to the treaty. Specifically, the letter - sent to Senators Orrin Hatch and Patrick Leahy of the Senate Judiciary Committee and to Representatives Lamar Smith and Howard Berman of the House Judiciary Committee - urged the subcommittees to hold hearings on “whether a new treaty is necessary, what changes to U.S. law would be needed to implement such a treaty, and what are the likely adverse consequences from implementing legislation.” The letter added that “Congressional oversight of the U.S. government position on the Broadcast Treaty is essential to prevent Congress from being presented a fait accompli by the U.S. delegation.”

Who else is concerned about the proposed new treaty?

A number of organizations have expressed concern about the proposed treaty and asked for congressional hearings include computer and telecommunications businesses, industry associations, and non-government organizations.